Branson, Catherine; Goldie, Cassandra --- "Human rights signposts along 'The Road Home'" [2009] ALRCRefJl 31; (2009) 94 Australian Law Reform Commission Reform Journal 14

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Reform Issue 94 Summer 2009

This article appeared on pages 14–17 of the original journal.

Human rights signposts along ‘The Road Home’

By Catherine Branson* and Cassandra Goldie*

The release of the federal government’s White Paper on Homelessness, The Road Home, in December 2008 marks the first time in 20 years that homelessness has been so prominently placed on the national political agenda.

The Road Home finally gives Australia a national housing strategy with clear targets for reducing homelessness.^[1] This is significant. It represents an unprecedented and progressive step by the Australian Government towards reducing homelessness in Australia.

The Road Home signalled a need to strengthen homelessness legislation and, as a result, the Government has announced a Parliamentary Inquiry into homelessness legislation.^[2] The House of Representatives Standing Committee on Family, Community, Housing and Youth ‘will make inquiries into the principles and service standards that could be incorporated in such legislation’ and give particular consideration to ‘the scope of any legislation with respect to related government initiatives in the areas of social inclusion and rights’.^[3]

The Road Home and the Parliamentary Inquiry provide us with the perfect opportunity to ensure that our efforts to reduce homelessness in Australia are effective and comply with our international human rights obligations.

This article suggests five human rights-based principles which should inform the government’s response to homelessness: monitoring progress; participation in policy development and service delivery; preventing forced evictions; reform of public space law and effective remedies for breaches of housing rights.

Monitoring progress

Under the International Covenant on Economic, Social and Cultural Rights (ICESCR) to which Australia is a party,^[4] we have an obligation to take steps, to the maximum of our available resources, to progressively realise the right to adequate housing for all people in Australia.^[5] This involves all levels of government committing to measurable outcomes and taking ‘deliberate, concrete and targeted’ legislative, policy and budgetary steps towards the full realisation of the human rights of homeless persons.^[6]

Australia’s track record in meeting this international obligation was reviewed this year by the United Nations (UN) Committee which monitors the implementation of the ICESCR. The Committee expressed concern about the increase in the rate of homelessness in Australia. It requested that Australia’s next periodic report include disaggregated data and information to allow the Committee to assess Australia’s progress in realising the right to an adequate standard of living, including housing, in particular for Indigenous peoples.^[7]

The Road Home certainly provides a ray of hope by identifying and committing the government to achieving key targets for reducing homelessness in Australia. Its dual target of halving homelessness and eliminating primary homelessness (for example, people ‘sleeping rough’) by 2020 should be commended. Progress towards these goals is to be measured through interim targets by 2013, such as a 25% reduction in primary homelessness and a 20% reduction in overall homelessness.

The Road Home also acknowledges that our current national data and research systems are inadequate to monitor how well we are achieving these targets.^[8] This is not unusual. Governments face a significant challenge in monitoring whether they are meeting their international obligations to progressively realise the human right to adequate housing.^[9]

The good news is that Australia is well-placed to become a leader in this area. The Australian Bureau of Statistics has developed a Homeless Enumeration Strategy,^[10] which aims to generate Census data on the number of people who are homeless. Coupled with several other important data sources, the Strategy is a firm basis upon which to design a framework for monitoring Australia’s compliance with its obligation to fulfil the human right to adequate housing. Work is also underway to develop a National Development Index to measure Australia’s progress using social, economic and environmental indicators.^[11] The degree to which the right to adequate housing is realised should be one of those indicators.

In sum, The Road Home sets out a promising national research strategy. It is imperative that the Australian Government now moves quickly on a strategy to address the gaps in data collection and research, which will be essential for tracking progress. The monitoring framework needs to be transparent, independently verifiable, and linked to our international obligations, to ensure accountability both to the Australian public and internationally.

Participation in policy development and service delivery

A human rights-based approach to addressing homelessness requires the direct and meaningful participation of people who experience it. Not only does their participation in the policy-making and service delivery processes accord them respect and dignity, it also improves the likelihood that policies and services will be relevant, effective and welcomed by those they are designed to assist.^[12]

The Road Home has shown promise in this regard. It explicitly recognises as a guiding principle that people who are homeless or at risk of homelessness need to be placed at the centre of service delivery and design.^[13] Moreover, it was developed through a public consultation process, during which more than 300 people experiencing homelessness gave their views.^[14]

Putting this principle into practice is a challenge—but one that can be met. For example, the government can ensure that relevant services are sufficiently funded to enable the active participation of people experiencing homelessness in the management, decision-making and evaluation structures of these services. Guaranteed avenues for such participation could even be a part of contracting frameworks. Many excellent examples of participation by people experiencing homelessness in service delivery already exist and could provide important guidance.^[15]

Preventing forced evictions

The international human right to adequate housing includes freedom from ‘forced evictions’. However, forced eviction is the key causal factor of homelessness.^[16] It is the main reason that couples, and couples with children, seek assistance from homelessness support services.^[17]

According to Australia’s international commitments under the ICESCR, we have an obligation to take all appropriate measures—to the maximum of our available resources—to ensure that adequate alternative housing or resettlement is available to those who are forcefully evicted and unable to provide for themselves.^[18]

But Australia’s record on this is far from perfect. First, we have been criticised by the UN Special Rapporteur on Adequate Housing for not having adequate legal protection in place to prevent forced evictions.^[19] Secondly, we lack national standards for tenancy laws which could ensure compliance with the ICESCR. At present, state and territory tenancy laws typically permit landlords to evict tenants, even when the tenant will be made homeless.^[20]

The Road Home indicates that the Australian Government will review tenancy laws. This is a welcome development.

The review should include a recommendation that all eviction laws comply with our minimum human rights obligations. A significant body of case law and analysis already exists to help construct the kinds of protections that need to be inserted into eviction laws to protect human rights.

For example, in South Africa, where the right to adequate housing is protected in the Constitution, the High Court of South Africa has ruled that, where a tenant will become homeless if evicted by a private landlord, the court may join the responsible government department to the eviction proceedings. The court can hear submissions from the government about arrangements to rehouse the tenant.^[21] The Constitutional Court of South Africa has also ruled that, in appropriate cases, the government may be ordered to compensate a private landlord if an eviction needs to be delayed until re-housing can be arranged.^[22]

This kind of procedure in our tenancy tribunals could significantly improve coordination of services and ensure that there is an appropriate balancing of the competing interests of private landlords and vulnerable tenants, especially when children are involved. This would also help to prevent people being made homeless, and reduce both the personal costs to those facing homelessness and the flow-on costs to the state.

Reform of public space laws

A strong commitment to reducing homelessness in Australia is a promising start. But eliminating homelessness will not be easy or quick.

Until we eliminate primary homelessness, there will continue to be people living ‘rough’ or sleeping in public places, and laws which regulate the use of public places will continue to impact disproportionately upon them.

Commonly referred to as ‘quality of life’ laws, these laws criminalise activities like sleeping, sitting, storing personal belongings, urinating and standing in public spaces. ‘Move on’ powers have a similar effect. The enforcement of these laws tends to discriminate against homeless individuals because they criminalise conduct which people experiencing homelessness generally have no choice but to conduct in public places.^[23] These laws have the effect of criminalising homelessness and thus violate their right to freedom from cruel, inhuman or degrading treatment.

But regrettably, The Road Home is silent on the need to protect people experiencing homelessness from policing of public space laws.

The UN Special Rapporteur on Adequate Housing expressed concern about the use of public space laws in Australia against people living in public places, and called for these laws to be reviewed to ensure that adequate human rights protections are in place.^[24]

The Government’s homelessness strategy needs to include a commitment to the review of public space laws and their impact on people who are homeless.^[25] For example, public space laws should be amended to include defences for homeless individuals which allow them to avoid the imposition of criminal sanctions. For instance, the laws could provide that a person who is homeless is entitled to use public space without interference unless there is a reasonable risk that the person’s conduct will cause harm to another person.^[26] In addition, a ‘Charter of Rights’ could be established to limit police powers, allowing for the protection of the rights of public space users to access public spaces without fear of intimidation or harassment by police officers.^[27]

Effective remedies for breaches of housing rights

Australia lacks effective remedies for breaches of the right to adequate housing which is at odds with our obligation to ‘progressively realise’ the rights contained in the ICESCR.^[28] Effective remedies should take the form of administrative remedies which are ‘accessible, affordable, timely and effective’,^[29] and ‘whenever a [ICESCR] right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary.’^[30]

Australia has been criticised in this regard by the UN Special Rapporteur on Adequate Housing who specifically identified a lack of mechanisms for people to complain about violations of housing rights in Australia.^[31] For example, the Australian Human Rights Commission cannot investigate complaints in relation to the right to adequate housing because rights contained in the ICESCR are excluded from the definition of ‘human rights’ under the Australian Human Rights Commission Act 1986 (Cth).^[32]

The Australian Human Rights Commission recommends that the federal government consider ratifying the Optional Protocol to the ICESCR,^[33] as a first step to redressing the lack of complaint mechanisms for violations of housing rights in Australia.

But more can be done here too. Federal anti-discrimination laws could be amended to prohibit discrimination on the grounds of social status or homelessness.^[34] Currently, there is no federal law protecting people experiencing homelessness against discrimination on the ground of their homelessness,^[35] for example, when trying to secure employment, obtain social security benefits or enrol their children in school. In this way, discrimination perpetuates disadvantage and prolongs homelessness.

Further, the Australian Human Rights Commission is advocating for the need for a national Human Rights Act which explicitly protects the right to adequate housing (as well as other ‘core’ economic, social and cultural rights). Such an Act could be drafted to ensure that courts take the principle of ‘progressive realisation’ into account when making decisions relating to the right to adequate housing. Under the South African Constitution, for example, the government is obliged to ‘take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of the rights to health care services, sufficient food and water, social security and adequate housing.^[36] An Australian Human Rights Act could be similarly drafted.

Conclusion

The Australian Government’s strong commitment to addressing homelessness in Australia is to be applauded. The challenge now is to design the laws, policies, services and protections to ensure that every person—whether they are living in a public place, seeking emergency housing, or facing eviction from their home—is afforded the basic rights to which we are all entitled, regardless of our socio-economic status. These rights are our human rights.

Australia can only gain if it draws upon human rights standards to produce targeted reforms of our laws, policies and service design. It is by proceeding in this way that we will give ourselves the best chance to get it right.

* The Hon Catherine Branson QC is the President of the Australian Human Rights Commission.

* Dr Cassandra Goldie is the Director of the Sex and Age Discrimination Unit at the Australian Human Rights Commission. She is an Associate of the Gilbert and Tobin Centre of Public Law at the University of New South Wales where she completed a PhD on the legal and human rights of people living in public space.

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[1] For example, the Commonwealth Department of Family and Community Services launched a National Homelessness Strategy in 2000 but commentators noted that it did not provide formal proposals at the national level and strategies were not adequately communicated by the federal government to the homelessness sector: See Homeless Individuals and Families Information System Initiative, Homeless Data Collection Strategy: Australia (2004), 3.

[2] T Plibersek (Minister for Housing and Minister for the Status of Women), ‘Government Announces Inquiry into Homelessness Legislation’ (Media Release, 18 June 2009). See also House of Representatives, Parliament of Australia, House Standing Committee on Family, Community, Housing and Youth, Inquiry into Homelessness Legislation, Terms of Reference (2009).

[3] Ibid.

[4] International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966.

[5] ICESCR, art 2(1). Note: This obligation of ‘progressive realisation’ extends to all other economic, social and cultural rights contained in ICESCR.

[6] ICESCR, note 2, art 2(1); UN Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties Obligations (Art 2, para 1 of the Covenant), UN Doc E/1991/23, annex III at 86 (1991), [2], [3] and [7].

[7] Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights, Australia (2009).

[8] See Homelessness Australia, Responding to the White Paper on Homelessness (2009), 14.

[9] E Felner, A New Frontier in Economic and Social Rights Advocacy? Using Quantitative Data for Human Rights Accountability (2008), <www.cesr.org> at 16 September 2009.

[10] See Australian Bureau of Statistics, Information Paper: Census of Population and Housing: ABS Views on Content and Procedures, 2011 (ABS Catalogue no 2007.0) (2007).

[11] Australian Bureau of Statistics, Measures of Australia’s Progress: Summary Indicators, 2009—National and International Initiatives, <www.abs.gov.au/AUSSTATS> at 16 September 2009.

[12] K Fernandes, ‘Why Not Involve the Homeless? Housing Rights and Community Building’ (Paper presented at the 3rd National Homelessness Conference ‘Beyond the Divide’, Brisbane, 6–8 April 2003); C Goldie, ‘Rights versus Welfare: Fostering Community and Legal Activism in Support of People Facing Homelessness’ (2003) 28(3) Alternative Law Journal 132; P Lynch, ‘Human Rights Lawyering for People Experiencing Homelessness’ (2004) 10(2) Australian Journal of Human Rights 59.

[13] Department of Families, Housing, Community Services and Indigenous Affairs, The Road Home: A National Approach to Reducing Homelessness (2008), 19.

[14] Ibid.

[15] See, for example, the Community Advisory Group of the PILCH Homeless Persons Legal Clinic at <www.pilch.org.au/CAG/> at 16 September 2009.

[16] Department of Families, Housing, Community Services and Indigenous Affairs, Which Way Home?: A New Approach to Homelessness (2008), 10.

[17] Australian Institute of Health and Welfare, Homeless people in SAAP: SAAP National Data Collection Annual Report. SAAP NDC report series 13 (Cat. no. HOU 191) (2009) 33, 38.

[18] Committee on Economic, Social and Cultural Rights, General Comment 7: Forced evictions, UN Doc E/1998/22 (1997), [16].

[19] UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari, Mission to Australia, 11 May 2007, A/HRC/4/18/Add.2, [69].

[20] UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari, Mission to Australia, 11 May 2007, A/HRC/4/18/Add.2, [17].

[21] In Lingwood v The Unlawful Occupiers of E/R of Erf 9 Highlands (Unreported, High Court of South Africa, Witwatersrand Local Division, Mogagabe AJ, 16 October 2007), the High Court of South Africa considered whether to grant such an order against 19 adults and eight children who were very poor and had lived in the property lawfully as private tenants, in some cases for more than 15 years. The Court ordered that the City of Johannesburg be joined in the proceedings so that it could be called to account regarding the provision of alternative accommodation for the families. See, further, C Goldie, ‘Housing and Homelessness: What’s Human Rights Got to Do With It?’ (Paper delivered at HREOC Human Rights Law Seminar, Sydney, 7 April 2009).

[22] President of the Republic of South Africa and Minister of Agriculture and Land Affairs v Modderklip Boerdery (Pty) (Ltd) (CCT20/04) [2005] ZACC 5, 2005 (5) SA 3 (CC); 2205 (8) BCLR 786 (CC) (13 May 2005).

[23] C Goldie, ‘Why Government is Treating us Like Animals: Legal and Human Rights Perspectives on Living in Public Space’ (2003) 16(9) Parity 16.

[24] UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari, Mission to Australia, 11 May 2007, A/HRC/4/18/Add.2, [47].

[25] House of Representatives, Parliament of Australia, House Standing Committee on Family, Community, Housing and Youth, Inquiry into homelessness legislation (2009) <www.aph.gov.au/house/committee/fchy> at 16 September 2009.

[26] T Walsh, No Vagrancy: An Examination of the Impact of the Criminal Justice System on People Living in Poverty in Queensland (2007) 10, 74.

[27] Ibid, 11, 75. For a detailed discussion of the procedural and substantive rights to be afforded to people facing forced evictions, including people living in public places, in accordance with international human rights standards, see C Goldie, ‘Living in Public Space: A Human Rights Wasteland?’ Thesis, University of NSW, 2008.

[28] See Committee on Economic, Social and Cultural Rights, General Comment No 9: The Domestic Application of the Covenant, UN Doc E/C.12/1998/24,CESCR (1998), [2].

[29] UN Committee on Economic, Social and Cultural Rights, General Comment No 9: The Domestic Application of the Covenant, UN Doc E/C.12/1998/24,CESCR (1998), [9].

[30] Ibid.

[31] UN Human Rights Council, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari, Mission to Australia, 11 May 2007, A/HRC/4/18/Add.2, [16].

[32] Australian Human Rights Commission Act 1986 (Cth) s 3.

[33] Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, GA resolution A/RES/63/117, opened for signature in March 2009.

[34] See, for example, Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1966 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 1995 (Vic); and Equal Opportunity Act 1984 (WA).

[35] Homelessness and Human Rights in Australia, Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation, (2003) 11.

[36] Constitution of the Republic of South Africa, 1996, ss 26–27.